Jennifer Turkette v. State of Indiana ( 2020 )

FILED
Jul 22 2020, 9:03 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Hanson Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jennifer Turkette, July 22, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-87
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff Judge
Trial Court Cause Nos.
02D05-1802-F4-11
02D05-1808-F6-917
Crone, Judge.
Case Summary
[1] Jennifer Turkette appeals her ten-year aggregate sentence following her guilty
plea to level 4 felony dealing in a narcotic drug, level 5 felony dealing in a
narcotic drug, level 6 felony possession of a narcotic drug, and level 6 felony
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unlawful possession of a syringe. She contends that her sentence is
inappropriate based on the nature of the offenses and her character.
Concluding that Turkette has failed to carry her burden to show that her
sentence is inappropriate, we affirm.
Facts and Procedural History 1
[2] On April 20, 2017, a Fort Wayne Police Department detective learned from a
confidential informant (CI) that the detective could purchase heroin from
Turkette. Appellant’s App. Vol. 2 at 9-10. The detective and the CI went to
Turkette’s trailer, where Turkette seated them in her family room, which held
numerous children’s toys. Turkette told the detective that she was currently on
home detention and had two children who were sleeping. The presentence
investigation report (PSI) reveals that Turkette was on home detention for
driving with a suspended license with a prior conviction. Id. at 84-85. Turkette
also told the detective that her supplier provided her with pure uncut heroin and
that three of her buyers had overdosed since the beginning of the year. She
informed the detective that someone would be coming to the trailer with the
heroin. When that person arrived, Turkette asked the detective for the money.
After the detective gave her $200, she went to the front door and stood just
outside it. A man ran up to the door with a plastic bag and gave it to Turkette,
1
We remind Turkette’s counsel that pursuant to Indiana Appellate Rule 46(A), the appellant’s brief is
required to set forth the statement of the facts before the standard of review.
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and she handed him the money. Turkette came back inside and immediately
handed the detective the plastic bag, which contained .8 grams of heroin.
[3] On May 2, 2017, the CI informed the detective that he could purchase heroin
from Turkette, and they went to her trailer. Turkette again seated them in the
family room, where two children both under the age of ten were playing.
Turkette had previously told the CI that the heroin was “killer” and that three
people had already overdosed on it that week. Id. at 7. A different man than
the one before arrived at the trailer, and Turkette asked the detective and the CI
who had the money. The detective then paid Turkette $200 for the heroin. The
man and Turkette went to the back of the trailer to divide the heroin, leaving
the children alone with the detective and the CI. Turkette came back to the
family room where the children were still playing and gave the detective .9
grams of heroin wrapped in yellow paper.
[4] Based on these incidents, on February 12, 2018, in cause number 02D05-1802-
F4-11 (Cause 11), the State charged Turkette with level 4 felony dealing in a
narcotic drug in an amount less than one gram in the presence of a child less
than eighteen years old and level 5 felony dealing in a narcotic drug in an
amount less than one gram. On June 4, 2018, Turkette agreed to plead guilty to
both charges and waived her right to be sentenced within thirty days, and the
trial court signed an order placing her into the Drug Court Diversion Program.
Id. at 24-30. Turkette also signed a drug court participation agreement.
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[5] Less than three weeks later, on June 24, 2018, Turkette’s then-eleven-year-old
child called 911 to report an overdose victim. Tr. Vol. 1 at 19. Medics and
police were dispatched to a house, where they found Turkette overdosed and
unconscious with the hypodermic needle still in her arm. Appellant’s App. Vol.
2 at 177-78. Turkette was in the basement of the house with both of her
children. Police discovered that Turkette was in possession of .2 grams of
fentanyl after the older child opened Turkette’s purse to show them where
“mommy’s dope is.” Tr. Vol. 1 at 19.
[6] Based on this incident, on August 3, 2018, in cause number 02D05-1808-F6-917
(Cause 917), the State charged Turkette with level 6 felony possession of a
narcotic drug and level 6 felony unlawful possession of a syringe. On August
13, 2018, Turkette agreed to plead guilty to both charges and waived her right
to be sentenced within thirty days, and the trial court signed an order placing
her into the Drug Court Diversion Program. Appellant’s App. Vol. 2 at 187-93.
Turkette also signed a drug court participation agreement.
[7] On August 22, 2018, in the United States District Court for the Northern
District of Indiana, Turkette was charged with knowingly selling a firearm to a
convicted felon. 2 Id. at 226. Turkette was convicted of that offense, and on
2
In several footnotes in her brief, Turkette requests that we take judicial notice of the proceedings in the
federal case. Because she cites no authority for the proposition that state courts may take judicial notice of
federal proceedings, we deny her request. The information regarding the federal case recited herein is
provided by the PSI and the transcript.
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August 21, 2019, she was sentenced to fifteen months in the bureau of prisons
and to two years of supervised release. Id.
[8] On June 18, 2019, Turkette moved to withdraw her guilty pleas in both state
causes, which the trial court granted, and her cases were returned to the active
trial docket. Id. at 59, 214. On October 18, 2019, Turkette pled guilty in both
causes without a plea agreement. Id. at 74, 219.
[9] On November 15, 2019, a sentencing hearing was held. The trial court
acknowledged Turkette’s remorse and found it to be a mitigating factor. The
trial court found that her criminal history, consisting of seven misdemeanors
and her federal felony conviction for selling a firearm to a convicted felon, was
an aggravating factor. The trial court further found as aggravating factors that
she had one suspended sentence that was revoked, was serving a suspended
sentence and wearing an ankle bracelet for home detention when she
committed the level 4 felony, 3 and was on bond when she committed the level 6
felonies; the court explained that such conduct showed a “complete disdain” for
the court system. Tr. Vol. 1 at 25. The trial court also noted that the PSI
indicated that Turkette was a high risk to reoffend, which the court would use
as a tool in determining whether it should execute Turkette’s sentence or place
her on supervised release. The trial court also found that Turkette bragged
about people overdosing from the heroin she sold them and that her child
3
The trial court misspoke here; Turkette had committed the level 5 felony dealing offense when she was on
home detention.
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showed the police where her drugs were. The trial court found that the
advisory sentence was not appropriate and that the facts and circumstances of
the offenses and prior failed attempts at rehabilitation warranted a sentence
above the advisory.
[10] In Cause 11, the trial court sentenced Turkette to concurrent executed terms of
eight years for the level 4 felony and four years for the level 5 felony. In Cause
917, the trial court sentenced Turkette to concurrent terms of two years with
one year suspended for each conviction. The trial court further ordered that the
sentence in Cause 917 be served consecutive to the sentence in Cause 11, for an
aggregate sentence of ten years with one year suspended. This appeal ensued.
Discussion and Decision
[11] Turkette asks us to revise her sentence pursuant to Indiana Appellate Rule 7(B),
which states, “The Court may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender.” Turkette has the burden to show that her sentence is inappropriate.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d
218. Although Rule 7(B) requires us to consider both the nature of the offense
and the character of the offender, the appellant is not required to prove that
each of those prongs independently renders her sentence inappropriate. Connor
v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016); see also Moon v. State, 110
N.E.3d 1156, 1163-64 (Ind. Ct. App. 2018) (disagreeing with majority’s
statement that Rule 7(B) “plainly requires the appellant to demonstrate that his
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sentence is inappropriate in light of both the nature of the offenses and his
character.”) (quotation marks omitted) (Crone, J., concurring in part and
concurring in result in part). Rather, the two prongs are separate inquiries that
we ultimately balance to determine whether a sentence is inappropriate.
Connor, 58 N.E.3d at 218.
[12] When reviewing a sentence, our principal role is to leaven the outliers rather
than necessarily achieve what is perceived as the correct result in each case.
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We review sentences in
their entirety to avoid overlooking the forest by focusing on the trees. Id. “We
do not look to determine if the sentence was appropriate; instead we look to
make sure the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864,
876 (Ind. 2012). “[S]entencing is principally a discretionary function in which
the trial court’s judgment should receive considerable deference.” Cardwell, 895
N.E.2d at 1222. “Such deference should prevail unless overcome by
compelling evidence portraying in a positive light the nature of the offense (such
as accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). As we assess
the nature of the offenses and character of the offender, “we may look to any
factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.
Ct. App. 2013). Ultimately, whether a sentence should be deemed
inappropriate “turns on our sense of the culpability of the defendant, the
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severity of the crime, the damage done to others, and myriad other factors that
come to light in a given case.” Cardwell, 895 N.E.2d at 1224. 4
[13] Turning first to the nature of the offenses, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). In Cause
11, Turkette was convicted of possession of a narcotic as a level 4 felony
because she committed the offense in the presence of children. Ind. Code § 35-
48-4-1. The advisory sentence for a level 4 felony is six years, with a range of
two to twelve years. Ind. Code § 35-50-2-5.5. Turkette was given two years
above the advisory with no time suspended. She was also convicted of level 5
felony possession of a narcotic. The advisory sentence for a level 5 felony is
4
Although Turkette seeks our review pursuant to Appellate Rule 7(B), she asserts that the trial court’s
failure to properly recognize and weigh aggravating and mitigating factors resulted in an inappropriate
sentence. We note that appellate review under Rule 7(B) is not a review of the trial court’s consideration of
aggravators and mitigators, but rather, as the rule states, an examination of the appellant’s sentence based on
the nature of the offense and the character of the offender, which we may undertake even if there is no
irregularity in the trial court’s sentencing decision. See Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind.
2006) (discussing application of Rule 7(B)); see also Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002)
(“Although a trial court may have acted within its lawful discretion in determining a sentence, Article 7, § 4
of the Indiana Constitution authorizes independent appellate review and revision of a sentence imposed by
the trial court.”). We further note that prior to 2005, when the legislature amended our sentencing statutes,
the trial court’s weighing of aggravating and mitigating factors was reviewed under an abuse of discretion
standard. See Anglemyer, 868 N.E.2d at 487-91 (discussing amendment of sentencing statutes). Since the
2005 amendments, as our supreme has explained, “[b]ecause the trial court no longer has any obligation to
‘weigh’ aggravating and mitigating factors against each other when imposing a sentence, ... a trial court can
not now be said to have abused its discretion in failing to ‘properly weigh’ such factors.” Id. at 491. Although
there remain other ways that a trial court can abuse its discretion in sentencing, id. at 490-91, Turkette does
not articulate a cogent argument in that regard. Accordingly, she has waived any claims that the trial court
abused its discretion in sentencing her. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in
appellant’s brief be supported by cogent reasoning and citations to authorities, statutes, and the appendix or
parts of the record on appeal); Casady v. State, 934 N.E.2d 1181, 1190 (Ind. Ct. App. 2010) (concluding that
defendant waived claim that trial court improperly admitted evidence by failing to cite rules of evidence and
case law), trans. denied (2011).
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three years, with a range of one to six years. Ind. Code § 35-50-2-6. She was
sentenced to four years executed.
[14] In Cause 917, she was convicted of two level 6 felonies. The advisory sentence
for a level 6 felony is one year, with a range of six months to two and a half
years. Ind. Code § 35-50-2-7. She was sentenced to two years, with one year
suspended. We note that the sentence in Cause 917 is required to be
consecutive to the sentence in Cause 11 because Turkette committed the
offenses in Cause 917 when she was on bond in Cause 11. Appellant’s App.
Vol. 2 at 89; Ind. Code § 35-50-1-2. Overall, an aggregate sentence based on the
advisory would have been seven years, and she was sentenced to ten years,
three years over the advisory sentence.
[15] Turning now to the specific facts and circumstances of Turkette’s offenses, we
observe that her children were with her or nearby during their commission.
Although this is accounted for in one count of dealing by its elevation to a level
4 felony offense, the children were in the trailer during the other dealing
offense, and they were with her when she overdosed and went unconscious
with the syringe still stuck in her arm. In fact, it appears that one of the
children called 911. This would have been a very traumatic experience for the
child. Also very troubling is that Turkette’s child knew where Turkette’s
fentanyl was and had ready access to it. Thus, Turkette’s actions have exposed
her children to potentially dangerous individuals who were buying and selling
drugs and to very dangerous, life-threatening substances.
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[16] As for Turkette’s character, she has shown a lack of concern for the safety and
security of her children. 5 Her boasting that her heroin was “killer” and about
the number of people who have overdosed from her drugs shows a lack of
regard for the lives of others. Appellant’s App. Vol. 2 at 7. Her criminal
5
Turkette cites Reis v. State, 88 N.E.3d 1099 (Ind. Ct. App. 2017), for the proposition that “[t]he analysis of
the ‘character of the offender’ begins with an assessment of ‘the trial court’s recognition or non-recognition of
aggravators and mitigators as an initial guide to determining whether the sentence was inappropriate.’”
Appellant’s Br. at 23 (quoting Reis, 88 N.E.3d at 1105). We note that the statement in Reis can be traced back
to Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006), which was handed down while Anglemyer was
up on transfer. The Gibson court acknowledged the uncertainty surrounding appellate review of a trial court’s
sentencing decision in light of the 2005 sentencing amendments and anticipated that our supreme court
would soon provide guidance when it handed down Anglemyer:
Until [our supreme] court issues an opinion in Anglemyer, we will assume that it is necessary to
assess the accuracy of a trial court’s sentencing statement if, as here, the trial court issued one,
according to the standards developed under the ‘presumptive’ sentencing system …. We will
assess the trial court’s recognition or nonrecognition of aggravators and mitigators as an initial
guide to determining whether the sentence imposed here was inappropriate.
Id. at 146-47 (citations omitted).
Anglemyer clarified appellate review of sentencing decisions in light of the 2005 sentencing amendments by
setting forth the manner in which a trial court may be said to abuse its discretion in sentencing and then
conducting a separate analysis under Rule 7(B) that did not involve an assessment of the trial court’s
recognition or non-recognition of aggravators and mitigators. 868 N.E.2d at 487-93. Based on Anglemyer, we
do not believe that a Rule 7(B) analysis should begin with an assessment of the trial court’s recognition or
non-recognition of aggravators and mitigators. Therefore, we do not believe that the statement in Reis, and
the other cases listed below, accurately represents appellate review under Rule 7(B). See Custance v. State, 128
N.E.3d 8, 10 (Ind. Ct. App. 2019) (“We assess the trial court’s recognition or non-recognition of aggravators
and mitigators as an initial guide to determining whether the sentence imposed was inappropriate.”); Henson
v. State, 86 N.E.3d 432, 441 (Ind. Ct. App. 2017) (same); Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App.
2017) (same), trans. denied; Green v. State, 65 N.E.3d 620, 637 (Ind. Ct. App. 2016) (same), trans. denied (2017);
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016) (same); Stephenson v. State, 53 N.E.3d 557, 561
(Ind. Ct. App. 2016) (same); Grundy v. State, 38 N.E.3d 675, 683 (Ind. Ct. App. 2015) (same), trans. denied;
Ellis v. State, 29 N.E.3d 792, 800 (Ind. Ct. App. 2015) (same), trans. denied; Sandleben v. State, 22 N.E.3d 782,
797 (Ind. Ct. App. 2014) (same), trans. denied (2015); Caraway v. State, 977 N.E.2d 469, 472 (Ind. Ct. App.
2012) (same), trans. denied (2013); Rhoton v. State, 938 N.E.2d 1240, 1248 (Ind. Ct. App. 2010) (same), trans.
denied (2011); Ruiz v. State, 926 N.E.2d 532, 537 (Ind. Ct. App. 2010) (same), trans. denied; Stokes v. State, 908
N.E.2d 295, 304 (Ind. Ct. App. 2009) (same), trans. denied; Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct.
App. 2008) (same); Taylor v. State, 879 N.E.2d 1198, 1206 (Ind. Ct. App. 2008) (same); Lemond v. State, 878
N.E.2d 384, 394 (Ind. Ct. App. 2007) (same), trans. denied (2008); Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007) (same); Phillips v. State, 875 N.E.2d 480, 483 (Ind. Ct. App. 2007) (same), trans. denied (2008);
Long v. State, 865 N.E.2d 1031, 1035 (Ind. Ct. App. 2007) (same), trans. denied.
Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020 Page 10 of 16
history, though many of her convictions are minor, shows a chronic disrespect
for the law and a continuing unwillingness or inability to abide by it. In the
year 2000, she was convicted of class B misdemeanor possession of marijuana,
class A misdemeanor driving while suspended, and class C misdemeanor
leaving the scene of an accident. In 2004, she was convicted of class B
misdemeanor reckless driving. In 2016, she was convicted of class A
misdemeanor driving while suspended, and her suspended sentence was
revoked. She was on home detention for that offense when she committed the
level 5 felony dealing offense in April 2017. In 2017, she was convicted of class
A misdemeanor driving while suspended and was serving her suspended
sentence for this crime when she committed the level 4 felony dealing offense.
In 2018, she received her fourth conviction for class A misdemeanor driving
while suspended and was arrested for knowingly selling a firearm to a convicted
felon, a federal felony. She was ultimately convicted of that federal offense,
which involved her purchasing a gun for her boyfriend, a convicted felon and a
large-scale drug dealer. When the police obtained a warrant to search his
home, they found methamphetamine, heroin, fentanyl, cocaine, crack cocaine,
marijuana, edibles, twenty-six guns, and two bombs. We recognize that her
actions are related to her drug addiction, but she was given a chance in drug
court and did not or could not take advantage of it. We conclude that based on
the nature of the offenses and Turkette’s character, Turkette has failed to carry
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her burden to show that her ten-year aggregate sentence for four felony drug
crimes is inappropriate. 6 Therefore, we affirm her sentence.
[17] Affirmed.
Altice, J., concurs.
Bailey, J., concurs with separate opinion.
6
Turkette asserts that during the sentencing hearing, the police detective and prosecutor demonstrated
animus towards her and the trial court made disparaging comments about her. These assertions do little to
advance her argument that her sentence is inappropriate.
Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020 Page 12 of 16
IN THE
COURT OF APPEALS OF INDIANA
Jennifer Turkette, Court of Appeals Case No.
20A-CR-87
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Bailey, Judge, concurring.
[18] I fully concur with the majority view that Turkette failed to show that her ten-
year aggregate sentence, with one year suspended, is inappropriate. However, I
write separately to address the focus of footnote five–whether the trial court’s
findings of aggravators and mitigators provide this court with initial guidance in
our review–as well as the current split on this Court as to whether, under
Indiana Appellate Rule 7(B), an appellant must satisfy one or two prongs to
obtain revision of a sentence as inappropriate.
[19] As the majority observes, panels of this Court have often cited a pre-Anglemyer 7
case for the proposition that a trial court’s findings of aggravators and
mitigators serve as an “initial guide” in our Rule 7(B) review for
7
Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.
Court of Appeals of Indiana | Opinion 20A-CR-87 | July 22, 2020 Page 13 of 16
inappropriateness. Indeed, this author has done so. See Custance v. State, 128
N.E.3d 8, 10 (Ind. Ct. App. 2019) (“We assess the trial court’s recognition or
non-recognition of aggravators and mitigators as an initial guide to determining
whether the sentence imposed was inappropriate” (quoting Gibson v. State, 856
N.E.2d 142, 147 (Ind. Ct. App. 2006)). Although such nomenclature has been
frequent, I would now be inclined to reject it, because it serves as a shorthand
phrase suggesting that we are directly reviewing the trial court’s work. We are
not.
[20] In Anglemyer, the Court summarized the sentencing review framework:
The imposition of sentence and the review of sentences on appeal
should proceed as follows:
1. The trial court must enter a statement including reasonably
detailed reasons or circumstances for imposing a particular
sentence.
2. The reasons given, and the omission of reasons arguably
supported by the record, are reviewable on appeal for abuse of
discretion.
3. The relative weight or value assignable to reasons properly
found or those which should have been found is not subject to
review for abuse.
4. Appellate review of the merits of a sentence may be sought on
the grounds outlined in Appellate Rule 7(B).
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868 N.E.2d at 491. The language employed by our Supreme Court makes plain
that we are “reviewing the merits of a sentence” and not the comprehensiveness
of the sentencing statement, which need only be “reasonably detailed.” See id.
In short, although we give “due consideration” to the trial court’s decision,
App. R. 7(B), we are not conducting a line-item review of the articulated
aggravators and mitigators. Because the “initial guidance” language might be
read to suggest that we consider the trial court’s sentencing statement as a
pronouncement of findings and conclusions, perhaps in some manner
constraining our 7(B) review akin to a search for clear error, I agree that we are
not well served by continuing to repeat it.
[21] The focus of our 7(B) review is succinctly defined: “The Court may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” But within this Court there
exists a split of opinion as to whether sentence revision may be obtained only
upon showing inappropriateness under both prongs. In Stephenson v. State, 29
N.E.3d 111, 122 (Ind. 2015), our Indiana Supreme Court offered the following
guidance: “Such deference [to the trial court judgment] should prevail unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).”
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[22] Some judges construe the Court’s use of the word “and” in the governing Rule
and in caselaw to mean that a successful appellant must identify compelling
positivity related to both the nature of the offense and to the appellant’s
character. See Landske v. State, WL 2479704 (Ind. Ct. App. 2020). Other judges
are persuaded that an appellant is not required to independently show revision
is warranted with reference to each prong, because the role of this Court is to
“ultimately balance” what is known of the nature of the offense and the
character of the offender. Connor v. State, 58 N.E.3d 215, 218 (Ind. Ct. App.
2016). I, like the majority here, view this ultimate balancing as our role in 7(B)
review. Although we must consider the evidence relative to each prong, the
appellant need not necessarily prove inappropriateness as to each prong.
Indeed, the statutory definition of certain offenses (such as simple possession)
may not allow for portrayal of the offense in a positive light. That said, we
await and invite further guidance from our Supreme Court.
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